What is the Integral to the Construction Defense and How Can You Beat it?
As personal injury attorneys who handle plenty of construction accident cases, we are often pressed with the “integral to the construction” defense. Basically, this argument is used when a worker trips and falls over a dangerous defect. The worker claims it was a tripping hazard in violation of Section 241(6) of the Labor Law as defined by the 12 NYCRR § 23–1.7(e)(2) and the contractor responds that, notwithstanding whether it was hazard, it was integral to the construction, and thus not a situation upon which liability can be based. See Salazar v. Novalex Contracting Corp., 18 N.Y.3d 134, 140 2011 (covering opening would have been inconsistent with work of filling it); Alvia v. Teman Elec. Contracting, Inc., 287 A.D.2d 421 (2nd Dept. 2001) (regulation did not apply where plaintiff, who was working with plywood, tripped on piece of plywood because it was “material used in the actual task he was performing”).
For instance, take the situation where a worker trips over a conduit, jutting from recently poured concrete. The pipe is neither marked nor flagged. It is in the middle of a passageway. In most instances, this is a clear tripping hazard and subject to liability. See Verel v. Ferguson Elec. Const. Co., 41 A.D.3d 1154, 1156, 838 N.Y.S.2d 280 (2007) (where worker tripped and fell over “three electrical conduits protruding approximately one foot from the concrete floor of the building under construction,” the Court held that worker had stated a section 200 and negligence claim insofar as he had alleged that the subcontractor “created” the defective condition over which worker fell); Rizzo HRH Const. Corp., 301 A.D.2d 426, 427, 752 N.Y.S.2d 875 (1st Dept. 2003) (issue of fact whether a metal drainpipe protruding approximately three inches out of the poured concrete slab floor of the basement constituted a dangerous condition so as to hold liable a contractor pursuant to section 200 of the labor law).
However, the contractor will argue that the conduit is integral to the construction – that is, it is critical to the infrastructure in that it will be used to house electrical wires for the various electrical system of the building. Or, the conduit will be part and parcel to the plumbing systems. In either scenario, the contractor will argue that it is integral and therefore they are immune to liability. The defendants to cite to O’Sullivan v. IDI Constrs. Co. (7 N.Y.3d 805, 822 N.Y.S.2d 745 ), Cumberland v. Hines Interests Ltd. P’ship (105 A.D.3d 465, 466, 963 N.Y.S.2d 173 ), and Verel v. Ferguson Elec. Const. Co. (41 A.D.3d 1154, 1157, 838 N.Y.S.2d 280 ), among others to support this argument. If the courts consider the defect somehow integral to the over construction, the Court will dismiss the 241(6) claim.
However, it appears that the Courts have been too ready to outright dismiss these claims. After all, integral is such a broad term and case law shows that integral can be used to define essentially any work condition at any construction project. It appears to us on the other hand that the real integral to the construction defense was only meant to apply where the worker was actually hurt by a defective condition that was integral to the work he or she was doing at the time at the time of the accident.
Notice the difference. Under the broader view, if a laborer is hurt sweeping the floor when he trips over a pipe coming out of the floor which later is going to be used to connect the toilet to the plumbing system, the case could be dismissed as that pipe was “integral” to the plumbing (and thus the overall construction) and thus 241(6) of the Labor Law does not apply. However, the pipe was not integral to the work the laborer was doing at the time of the accident – sweeping. Thus, under the more narrow view, the integral defense would not apply.
We have seen some cases apply the narrower version. For instance, in Smith v. New York City Hous. Auth., 71 A.D.3d 985, 897 N.Y.S.2d 232 (2nd Dept. 2010), the court dismissed plaintiff’s Section 23-1.7(e)(2) claim when he was hurt when he stepped on a piece of rubble that was generated pursuant to concrete demolition work. In that case, the injured plaintiff alleged that, at the time of the subject accident, he was using a jackhammer to perform work demolishing a four-foot wall of a terrace as he stood on the platform of some scaffolding.
Specifically, he was using the jackhammer to chip away mortar surrounding a cinder block in order to dislodge the block from the wall, when he observed the cinder block, which was still attached to either one or two other cinder blocks, start to fall. The plaintiff tripped on some debris stemming from the chipping process on the platform while attempting to move out of the way of the falling cinder block and he was hurt.
The plaintiff claimed the defendants violated 12 NYCRR 23-1.7 (e) (2), which requires owners and contractors to maintain working areas free from tripping hazards such as, inter alia, debris and scattered materials. The plaintiff had alleged that, generally, after broken brick and cinder block were piled up onto scaffolding, laborers would remove it. However, according to the injured plaintiff, the broken brick and cinder block had not yet been removed from the scaffolding when the accident occurred. As such, the plaintiff claimed that the defendants violated the industrial Code by allowing the debris to remain on the scaffold so that it became a tripping hazard.
The Court rejected the claim, noting that a violation of 12 NYCRR 23-1.7 (e) (2) only applies ” insofar as may be consistent with the work being performed” (emphasis added). The Court held that the provision “did not apply to the facts of this case” because the evidence submitted by defendants “demonstrated that the materials that the injured plaintiff alleges he tripped over were integral to the work being performed.” In other words, the “defect” over which he fell was a product of the very process he was instructed to perform and was actually performing at the time of the accident. Thus, to hold the contractor liable for that very defect would essentially have required the contractor not to demolish the bricks. Such a requirement obviously would not be “consistent” with the work being performed. As such, the Court held that the industrial code did not apply.
Similarly, in Salinas v. Barney Skanska Const. Co., 2 A.D.3d 619, 620, 769 N.Y.S.2d 559 (2nd Dept. 2003) (a case cited as authority by defendants), the plaintiff was performing demolition work when he was injured. He was removing a large, heavy air conditioning duct attached to the ceiling by burning through the metal rods supporting it. The duct expectantly came crashing down. As plaintiff attempted to get out of the way, he slipped on demolition debris that stemmed from the work plaintiff was doing and became injured.
Likewise, Sharrow v. Dick Corp., 233 A.D.2d 858, 649 N.Y.S.2d 281 (4th dept. 1996), the plaintiff, an ironworker, injured his back while moving a 350-pound metal lockbox during construction of a building. The injury occurred when plaintiff lifted the object off the forks of a Genie hoist, which had been used to transport lockboxes within the facility. As he lifted one end of the lockbox, plaintiff tripped over a tubular extension attached to the hoist and then stumbled forward, and was injured.
Rejecting plaintiff’s section 23-1.7 (e) (2) claim, the Court noted that Industrial Code provision clearly states that floors, platforms and similar working areas “shall be kept free from accumulations of dirt and debris and from scattered tools and materials and from sharp projections insofar as may be consistent with the work being performed.” “That regulation does not apply here because the object on which plaintiff tripped, the Genie hoist, was an integral part of the work he was performing.” (Emphasis added). Again, given the defect over which plaintiff fell was inherently intertwined with the work plaintiff was performing at the time of the accident, the injured worker was unable to pursue a Section 23-1.7(e)(2) claim.
Finally, in Lenard v. 1251 Americas Associates, 241 A.D.2d 391, 392, 660 N.Y.S.2d 416 (First Dept. 1997), the foreman instructed plaintiff to move some rolled-up carpeting and unhung doors across an open area which measured about 50 feet by 50 feet. As he crossed the room, plaintiff tripped on a door stop which was affixed to the concrete floor. Nothing else in the area was affixed to the floor, and there were no door frames, doors, entrances or offices in the area. He did not see the door stop before he tripped but later observed that it was half-moon shaped, raised about three-quarters of an inch to an inch and one-half above the floor, secured to the floor and the same color as the concrete.
Defendants moved for summary judgment, contending that the door stop was “integral” to the construction and therefore paragraph (2) of 12 NYCRR 23-1.7 (e) did not apply. The Court rejected that argument, stating:
“While the [defendants] place reliance on the fact that liability will not be imposed where the item causing the injury was an integral part of the floor being constructed, an integral part of the work being performed, or itself constituted a protective device, this reliance is misplaced in this matter because the floor itself was not under construction, the door stop did not constitute an integral part of the work being performed, and the door stop cannot be deemed a protective device.”
Id . (cited authorities omitted). Again, the Courts were more concerned with the work plaintiff was doing at the time of the accident, as opposed to limiting the analysis to the makeup of the actual hazard.
Given Smith, Salinas, Sharrow, Lenard, and their progeny, it is clear that the protections afforded by section 23-1.7 (e) (2), which prohibits tripping areas in work areas, will not apply where the defect over which the worker fell is integral to the work that the injured worker was hired to perform. As such, when applying the integral work defense, one must focus on the nature of the work plaintiff was doing – as opposed to hyper focus merely on the object over which plaintiff fell. It is only when one considers the work the plaintiff was doing can she then consider the whether the proposed remedy to the hazard would be “consistent” with the very work the worker was instructed to perform in the first place. See e.g. Lopez v. New York City Dep’t of Envtl. Prot., 123 A.D.3d 982, 983, 999 N.Y.S.2d 848 (2014) (uncapped piece of a vertical rebar, upon which plaintiff fell, was not integral to the work plaintiff was performing); Ocampo v. Bovis lend Lease, LMD, 123 A.D.3d 456, 998 N.Y.S.2d 340 (First Dept. 2014) (ice upon which plaintiff fell, which stemmed from certain asbestos abatement processes being performed at construction project, was not integral to the wall demolition work plaintiff was doing at the time of the fall); Sanders v. St. Vincent Hosp., 95 A.D.3d 1195, 1196, 945 N.Y.S.2d 343 (Second Dept. 2012) (defendant’s “own submissions presented triable issues of fact as to whether the object, if any, over which the plaintiff tripped and fell was integral to the work being performed”); Rizzo v. HRH Construction, 301 A.D.2d 426, 752 N.Y.S.2d 875 (First Dept. 2003) (a metal drainpipe “protruding three inches out of a the poured concrete slab floor of the basement” was not integral to the work the plaintiff was performing when he fell – the plaintiff was pushing a wheelbarrow filled with debris); compare Alvia v. Teman Elc. Contracting, supra, 287 A.D.2d at 288, 731 N.Y.S.2d 423 (“The regulation does not apply where the object on which plaintiff tripped * * * was an integral part of the work he was performing” [quotations and authorities omitted] [emphasis added]).
We hope this analysis helps you win this argument at Supreme Court and the Appellate Divisions. After all, it is about the workers and keeping them safe.